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Tuesday, March 13, 2018

Analysing The Odisha Land Rights to Slum Dwellers Act, 2017

by Jai Vipra.

Slum rehabilitation in India is plagued with issues of dispossession, illegal subletting, corruption and exclusion. In a previous post, I had described the concept of 'working titles', or titles to slum land that provided some, but not all, property rights to slum dwellers, usually tied to provision of municipal services, infrastructure, housing upgradation or credit. Such working titles could avoid the political economy and institutional problems encountered in slum rehabilitation policies in India.

In a welcome move, a working title was created in Odisha, a state where roughly 23% of the urban population (5,00,000 households) lives in slums. The Odisha Land Rights to Slum Dwellers Act was passed in September 2017. The Act has two interlinked objectives: one, to provide tenure security to slum dwellers against the constant threat of eviction or demolition, and two, to create a legal base for improving the liveability of slum dwellings. The Act provides for in-situ rehabilitation in general, and offsite rehabilitation in case of land important for the public interest, land unfit for human habitation, ecologically sensitive land, or heritage land.

The Act creates a working title through the instrument of a Certificate of Land Right, which grants the right to occupy a particular piece of land. This right is heritable but not transferable - the right holder cannot sell, lease or gift it to someone else. It is, however, mortgageable for housing finance, and can be transferred to the relevant financial institution in case of default.

The Act prevents transfer or ownership of more than one such certificate by one person. In the event of a transfer, it is declared null and void, no compensation is paid to the transferee, and the transferer can be fined up to Rs. 20,000 or subjected to one year imprisonment, or both.

Issues

(1) The Act seems to define slums only to include slums on state government land, which would make the provisioning of land rights practical. However, the drafting on this is unclear and the Act could benefit from a rewording of the following provision:

2 (r) slum or slum area means a compact settlement of at least twenty households with a collection of poorly built tenements, mostly of temporary nature, crowded together usually with inadequate sanitary nd drinking water facilities in unhygienic conditions, which may be on the State Government land in an urban area.

If the Act does not intend to exclude privately owned land, it ought to contain provisions to compensate the current legal owners of such land while granting property rights to slum dwellers.

(2) There is a trade-off that the Act implicitly identifies between providing transferability and protecting slum dwellers from dispossession. The procedure for surrendering a certificate in case a family wants to move to another dwelling outside the slum is not outlined in either the Act or its corresponding Rules. Only the procedure for surrendering a title in case a household owns more than one Certificate of Land Right is outlined. The rationale appears to be that if an option to surrender the rights were to be available, it would create incentives to force slum dwellers to surrender those rights, particularly as the government owns land left over after survey and settlement. While the choice made is fair, it is helpful to underline its consequences - families do not have a way of moving out of the settlement legally and easily.

(3) The Act sets up an Urban Area Slum Redevelopment and
Rehabilitation Committee under the Collector to survey the land, approve a list of residents, and provide certificates. It also creates an Appellate Authority to whom appeals against the decisions of the Committee can be made. Neither the Act nor the Rules prescribe any criteria or manner of selection for this appellate authority, short of stating that the State Government will appoint him or her.

(4) While the pilot in Ganjam focused on community participation, the Act and Rules do not emphasise it as much. The Rules state that the Chairperson of the Committee must serve a notice to slum dwellers to 'appear before him' to point out boundaries, and that even if people do not turn up, they will be bound by the results of the survey. This provision, while in consonance with the Orissa Survey and Settlement Rules, 1962, might be inadequate given the supreme importance of community participation that emerges from examples of working titles from other countries.

The above-mentioned Committee, after the survey process, approves a list of households to whom land rights will be accorded. Land rights are only to be given to landless persons, defined as persons who do not own land and whose families do not own land in that urban area. This provision can possibly be exploited by both slum dwellers and authorities, as it is a difficult claim to prove. Thus community participation at the survey stage becomes doubly important: to control both exclusion and inclusion errors.

Further, communication about what the title means is vital. People can experience decreased tenure security if the nature of the title is not conveyed well. Particularly as this Act requires slum dwellers who are not from economically weaker sections to pay a certain amount for land, there is a risk of long-term slum residents perceiving it as a threat to ownership rights rather than a strengthening of land tenure. The fact that the money collected is credited to a fund only to be used for slum improvement needs to be made clear to the community.

A government media briefing talks about the creation of Slum Dwellers' Associations, but this is not institutionalised policy. In general, whether it is through the Act, the Rules or government record-keeping and institutional learning, the role of community participation needs to be emphasised more.

The government is now looking to implement the Act in all districts of the state, and has conducted training programs for the same. There are certainly questions about the incentives the Act creates to squat on public land, but these have to be answered by other urban as well as rural policy initiatives to manage migration better. Overall, the Act is an encouraging step as it ties slum policy to slum dwellers' issues rather than ideals of a 'slum free city' or practices such as large-scale resettlement. Given the potential working titles have to avoid issues faced by regularisation carried out in the normal manner, it will be worth examining the implementation of this Act so that other states can draw lessons.

Jai Vipra is a reasearcher at National Institute of Public Finance an Policy. The author thanks Anirudh Burman for useful discussions.

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